How Big a Deal is H.R. 347, That “Criminalizing Protest” Bill?

Recent days have seen significant concern about an unassuming bill with an unassuming name: the "Federal Restricted Buildings and Grounds Improvement Act of 2011." The bill, H.R. 347, has been variously described as making the First Amendment illegal or criminalizing the Occupy protests.

The truth is more mundane, but the issues raised are still of major significance for the First Amendment.

It's important to note — contrary to some reports — that H.R. 347 doesn't create any new crimes, or directly apply to the Occupy protests. The bill slightly rewrites a short trespass law, originally passed in 1971 and amended a couple of times since, that covers areas subject to heightened Secret Service security measures.

These restricted areas include locations where individuals under Secret Service protection are temporarily located, and certain large special events like a presidential inauguration. They can also include large public events like the Super Bowl and the presidential nominating conventions (troublingly, the Department of Homeland Security has significant discretion in designating what qualifies as one of these special events).

The original statute, unchanged by H.R. 347,made certain conduct with respect to these restricted areas a crime, including simple trespass, actions in or near the restricted area that would "disrupt the orderly conduct of Government," and blocking the entrance or exit to the restricted area.

H.R. 347 did make one noteworthy change, which may make it easier for the Secret Service to overuse or misuse the statute to arrest lawful protesters.

Without getting too much into the weeds, most crimes require the government to prove a certain state of mind. Under the original language of the law, you had to act "willfully and knowingly" when committing the crime. In short, you had to know your conduct was illegal. Under H.R. 347, you will simply need to act "knowingly," which here would mean that you know you're in a restricted area, but not necessarily that you're committing a crime.

Any time the government lowers the intent requirement, it makes it easier for a prosecutor to prove her case, and it gives law enforcement more discretion when enforcing the law. To be sure, this is of concern to the ACLU. We will monitor the implementation of H.R. 347 for any abuse or misuse.

Also, while H.R. 347, on its own, is only of incremental importance, it could be misused as part of a larger move by the Secret Service and others to suppress lawful protest by relegating it to particular locations at a public event. These "free speech zones" are frequently used to target certain viewpoints or to keep protesters away from the cameras. Although H.R. 347 doesn't directly address free speech zones, it is part of the set of laws that make this conduct possible, and should be seen in this context.

Rest assured we'll be keeping an eye on how this law will be interpreted and used by law enforcement — especially in light of the coming elections.

UPDATE: The headline has been changed to provide some description of the bill.

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r. b.

i think anonymous should take a walk

Anonymous

Anybody who thinks that the ACLU helps to preserve our civil liberties is sadly misguided. This article is proof. As the article says, they are just going to stand by and watch.

Anonymous

They are just going to stand by and watch?

Anonymous

i read somewhere else that said this law won't affect us the people, then WHY THE FRICK DID THEY PASS IT? this law along with ACTA, NDAA and all the others he is passing are very hitler likem and pust americans closer and closer to facism!

good job n spreading the truth

Anonymous

Not only are Occupiers concerned, so are those on the right. Too much leeway for government to arbitrarily determine which protest is legal and which is not based on political content.

Anonymous

If you read the text of the law you will see that you have to KNOWINGLY commit these acts. It's not the "anti freedom of speech" law that everyone is claiming it is. Read it carefully:
(a) Whoever—
‘‘(1) knowingly enters or remains in any restricted building
or grounds without lawful authority to do so;
‘‘(2) knowingly, and with intent to impede or disrupt the
orderly conduct of Government business or official functions,
engages in disorderly or disruptive conduct in, or within such
proximity to, any restricted building or grounds when, or so
that, such conduct, in fact, impedes or disrupts the orderly
conduct of Government business or official functions;
‘‘(3) knowingly, and with the intent to impede or disrupt
the orderly conduct of Government business or official functions,
obstructs or impedes ingress or egress to or from any restricted
building or grounds; or
‘‘(4) knowingly engages in any act of physical violence
against any person or property in any restricted building or
grounds;
or attempts or conspires to do so,

Let me take this out of "layer speak" so you can understand. What this law says is basically that you are guilty if you:
knowingly enter or remain in a restricted building
or
knowingly engage in disrupteive behaviour in or near an area in which government business/functions are occuring, with the intent to impede or disrupt that business/functions.
knowingly bar entries and exits to a building where there is government buiness/function occuring, with the intent to disrupt such government business/function.
knowingly assault someone or vandalize any property in the area in which the governemt business/function is occuring

These are all crimes themselves (assault, public disturbence, vandalism, etc) and this law only increases the penalty for performing these illegal behaviors in a way that distrubs the normal processes of the US government.
In all cases you have to know you are doing the illegal thing. You don't have to know that it IS illegal (remember "ignorance of the law is not a defence for violating it", though with the publicity this law has it would be unlikely you would NOT be aware of the law), but you MUST know that you are indeed committing the act that you are committing. In other words if you entered a builting where a government function was taking place, but you were unaware that a government function was occuring there, you would not be KNOWINGLY entering the building without permission where the government function was occuring, and therefore you would NOT be guilty of the crime. However at that point you would likely be made aware of the situation by a security guard, and then if you REFUSED to leave you WOULD be committing a crime.
Or lets say that you weren't aware that a government function was happening somewhere, but you decided to spray grafiiti there. Now you would be committing vandelism in a place that was being used by a government function, but you wouldn't KNOWINGLY be committing vandelism in a place that was being used by a government function, because you did not KNOW that a government function was happening there. You would therefore NOT be in violation of this new law, but you WOULD be in violation of the grafitii or vandalism law which would already be in place (most jurisdictions have such laws).

Wayne Vermillion

HR 347 is a big deal when you also consider NSA building of the UTAH Data Center which will be able to Moniter all forms of Commuinications. Another form of Goverment Control

Andy Logar

HR347 may be no big deal in Putin's Russia - but it is a very big deal in America. Shame on the ACLU for your insouciance regarding the violation, or at the very least, restriction, of our First Amendment. Had GW Bush signed this constitutional travesty into law the ACLU would have gone absolutely crazy over the obvious abuse of power. But Obama? Heaven forbid - he is a socialist and a "progressive" and can do no wrong. Again, hang your heads in shame - you are all communists at heart as your founders were.

earthtojohn

Allow this law to stand then next it will be a crime to report unfavorably on the President

pkeyrich

Imagine what will now happen to Congressmen calling the President a liar.

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